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The Client-Lawyer Relationship · 10-16% of the exam

4.2.4Communications with the client (Rule 1.4)

Why

The decisions the rules hand to the client are worth nothing while the facts they turn on stay inside the lawyer's office. A silent lawyer does not merely inconvenience anyone; the lawyer quietly assumes choices that were supposed to belong to someone else. Communication is what makes that allocation of authority real rather than nominal.

Plain English

  1. Promptly inform the client where a decision or circumstance calls for informed consent;
  2. reasonably consult about means;
  3. keep the client reasonably informed about status, significant developments included;
  4. comply promptly with reasonable requests for information;
  5. explain matters to the extent reasonably necessary for informed decisions; and
  6. raise limits on the lawyer's own conduct where the client expects impermissible help.

Delay is permitted where immediate word would prompt an imprudent reaction.

Context. Rule 1.4 preserves the client's capacity to make informed decisions; failing to convey a settlement offer typically violates both rules.

The rule (Rule 1.4):

Six points on what a lawyer must do, and the sixth is the one about limits on the lawyer's own conduct:

  1. Promptly inform the client of any decision or circumstance requiring the client's informed consent.
  2. Reasonably consult with the client about the means by which the client's objectives are to be accomplished.
  3. Keep the client reasonably informed about the status of the matter — significant developments included.
  4. Promptly comply with reasonable requests for information.
  5. Explain matters to the extent reasonably necessary to permit the client to make informed decisions.
  6. Consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows the client expects assistance the Rules of Professional Conduct or other law does not permit.

Comment [2] — Settlement and plea notification: The lawyer must notify the client of every settlement offer and every proffered plea bargain. Exception: the client previously indicated the proposal would be acceptable or unacceptable, or has authorized the lawyer to accept or reject.

Comment [8] — Material errors: A lawyer should promptly inform a current client of a material error in that client's representation. The Rule does not require the lawyer to inform a former client of an error discovered only after the relationship has ended.

Withholding vs. delaying: A lawyer may delay (not permanently withhold) information when immediate communication would likely cause the client to react imprudently, as when a psychiatrist advises delay. A court order forbidding disclosure must be followed.

Informed consent (Rule 1.0(e)): Agreement after the lawyer has communicated adequate information and explanation about the material risks and reasonable alternatives. Oral consent generally suffices. Written consent is required where a specific rule says so — starting with conflict waivers, which Rules 1.7, 1.9, 1.11, 1.12 and 1.18 require to be confirmed in writing, plus contingent fee agreements, business-transaction consents between lawyer and client, and fee-splitting disclosures under Rule 1.5(e). Watch which kind of writing each rule demands. Conflict waivers and fee-splitting disclosures are confirmed in writing, which the lawyer may supply; a contingent fee agreement (Rule 1.5(c)), a business transaction with a client (Rule 1.8(a)(3)), and an aggregate settlement (Rule 1.8(g)) each require a writing signed by the client. The aggregate settlement of the claims of or against two or more clients requires that each client give informed consent, in a writing signed by the client (Chapter 10).

Example 1

Ex. 1

On the Thursday before a Monday trial, defense counsel offered $220,000 to settle. The plaintiff's attorney, believing the case was worth over $500,000, declined without contacting the client. The jury awarded $85,000. The attorney is subject to discipline under Rule 1.4 and faces malpractice exposure for the combined Rules 1.4 and 1.2 violations. The belief the client would have rejected the offer is irrelevant. Ignore both dollar figures and ask what reached the client.

Example 2

Ex. 2

Priya was pursuing a personal-injury claim while receiving inpatient psychiatric care. Her attorney received a report showing her injuries were partly pre-existing. The treating psychiatrist warned that sharing the report before she stabilized could cause significant distress and imprudent decision-making. The attorney waited twelve days before transmitting it. No violation. A brief delay is permissible when a medical professional has specifically advised against immediate disclosure to prevent imprudent reaction; permanent withholding would be a different matter. Pair the two facts this example leans on — a brief delay, and a doctor who specifically advised it.

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Questions · 1

Q 01ch04-e10

Question 1 of 1 · Rule 1.4

Attorney represented Client in an appeal, which ended when the appellate court affirmed the judgment below. Client paid the final bill, collected the file, and told Attorney the relationship was over. Four months later, going through the closed file for an unrelated reason, Attorney found that a supplemental brief had been filed a day after the deadline and struck, and that the striking had cost Client one of the arguments on appeal. Attorney had not noticed the error while the representation was running and has said nothing to Client about it since. Was Attorney's silence proper?

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4.2.4 Communications with the client (Rule 1.4) · Chapter 4 · Open Bar Review